Appeal of

JM CARRANZA TRUCKING CO.

PSBCA No. 6354

Under Contract No. HCR 33547

APPEARANCE FOR APPELLANT:
Joel D. Broida, Esq.
Broida & McKinney P.A.

APPEARANCE FOR RESPONDENT:
Melissa Mortimer, Esq.
Office of the General Counsel
United States Postal Service

OPINION OF THE BOARD ON APPELLANT’S
MOTION FOR STAY OF ENFORCEMENT

            Appellant, JM Carranza Trucking Company, is a mail transportation contractor for Respondent, United States Postal Service.  Respondent pays for the fuel Appellant uses in performing contract services and has asserted a claim against Appellant for what it contends was Appellant’s use of excessive amounts of fuel.  Respondent unilaterally established a schedule of offsets against Appellant’s current and future contract payments to recover the amount of its claim.  Appellant appealed Respondent’s claim and has filed a Motion for Stay of Enforcement asking the Board to stay Respondent’s collection of the alleged debt by offset until the Board decides the appeal.  Respondent filed an opposition.  The following findings of fact are made for purposes of deciding the motion.

FINDINGS OF FACT

            1.  Appellant holds two highway mail transportation contracts, HCR 33749 and HCR 33547, awarded by Respondent (Appeal File, tabs (“AF”) 1-3).

            2.  By means of a Postal Service-issued charge card, Respondent paid for the fuel Appellant used in performing contract HCR 33749 (AF 2). 

            3.  By final decision dated September 14, 2010, the contracting officer asserted that through August 2010, Appellant had used and charged to Respondent 92,970 gallons of fuel over the amount the contract allowed.  Respondent calculated the value of the claimed excess gallons used at $285,549.24, and in his final decision the contracting officer stated Respondent’s intention to recover that amount by making deductions of $23,795.77 from each monthly contract payment due Appellant under contract HCR 33547 for the next 12 months.  (AF 5).

            4.  Appellant appealed the final decision, and has filed a motion asking the Board to stay Respondent’s collection of the claimed debt by offset while the appeal is pending.

DECISION

            In support of its motion, Appellant argues that there are discrepancies in the documents purporting to prove Respondent’s claim and that it would be premature to allow Respondent to collect on its claim before the amount of any excess fuel usage is established with certainty.  Appellant also argues that offsetting the amount at issue against its contract earnings would cause it severe hardship.

            Respondent argues that the relief Appellant seeks is beyond the jurisdiction of the Board because it is injunctive in nature.  Respondent correctly notes that the Board is not authorized to grant injunctive relief or specific performance, see Sarah M. Mitchell, PSBCA No. 6173, 09-1 BCA ¶ 34,107, at 168,656; AFV Enters., Inc., PSBCA Nos. 2691, 3316, 98-1 BCA ¶ 29,586, at 146,665, and thus cannot grant a stay of Respondent’s collection by offset against contract payments.  See Applied Ordnance Tech., Inc., ASBCA Nos. 51297, 51543, 98-2 BCA ¶ 30,023.

            Appellant’s Motion for Stay of Enforcement is denied.

                                                                        Norman D. Menegat
                                                                        Administrative Judge
                                                                        Board Member

I concur:                                                          I concur:
William A. Campbell                                     David I. Brochstein
Administrative Judge                                    Administrative Judge
Chairman                                                       Vice Chairman